On Friday, District Judge Matthew Kacsmaryk, who is among the most reactionary of former President Donald Trump’s appointees, signaled a desire to conduct the judicial process around a momentous decision before him with the shades drawn. According to the Washington Post, Kacsmaryk scheduled for Wednesday a hearing on his case to decide the future of the abortion pill, but sought to delay putting it on his public calendar until Tuesday to avoid public attention and possible protest.
Transparency is among the most important features of our judiciary. “Sunlight,” Supreme Court Justice Louis D. Brandeis wrote before joining the court, “is said to be the best disinfectant.” Decades later, Chief Justice Warren Burger applied that principle to the courts: “The crucial prophylactic aspects of the administration of justice cannot function in the dark.”
Dimmed light may be what Kacsmaryk prefers as he conducts his judicial process, but the outcome in this fraught action—which anti-abortion groups maneuvered into his courtroom—will not escape the people’s attention. The hyper-right Texas judge is expected to rule that the U.S. Food and Drug Administration improperly approved mifepristone, one of the pills in two-part medication abortions, a full 22 years ago. It has been safely used ever since.
What’s worse is that most observers think Kacsmaryk will issue an injunction halting the distribution of the drug, including in states where abortion is legal. That would exceed what the Supreme Court did in last June’s Dobbs decision, overturning Roe v. Wade but at least leaving women’s reproductive rights intact in states that opt to respect them.
The problem here goes beyond a single hearing, or even this single case. The real issue is systemic. Far-right groups have created a judicial pipeline to predictable triumph in one culture war battle after another: from Kacsmaryk in the plains of the Texas panhandle, to the hyperconservative U.S. Court of Appeals for the 5th Circuit, to the radically stacked majority on the Trump-packed U.S. Supreme Court. One Amarillo-based judge with carte blanche, virtually certain his extreme views will prevail on appeal, is apparently planning to curtail abortion access across the country.
What’s happening is not mere “judge-shopping,” as many have called it. That term is traditionally used to describe an individual’s search for a nearby court inclined to rule favorably.
By contrast, here there’s a coordinated national strategy, enabled by a district court federal bench, to bring right-wing legal causes into a single courtroom where a favorable result is a sure thing and where fair-minded appellate review has also been hijacked.
Let’s start with the local bench. In 1988, Congress left an easily closed loophole in the procedure for assigning cases to federal judges that made such gaming of the system possible. In July 2019, the judges of the Northern District of Texas took advantage of that loophole. They issued a special order funneling to Judge Kacsmaryk every case filed anywhere in the 25,914-square-mile area of the Amarillo Division in which he sits.
Groups throughout the country sharing his religious-political ideology have found it easy to establish a plaintiff’s residence within that sprawling 26-county region. Their goal is to ensure that test cases they design will land on his desk, even though the real forces behind the suit are national or global in reach.
Consider the anti-abortion groups that brought this case to Kacsmaryk. They know he previously worked at the First Liberty Institute, a Christian conservative litigation operation that opposes women’s reproductive freedom. Before Kacsmaryk’s appointment to the bench, he wrote that the “erotic desires of liberated adults” had taken priority over marriage and the unborn child.
And so national anti–reproductive rights organizations homed in on his judicial fiefdom. The complaint in the abortion pill case says that the named plaintiff, the Alliance of Hippocratic Medicine—incorporated just months before filing suit—is based near Amarillo. Rolling Stone reports that its mailing address is actually in Tennessee, but that is no impediment to gaining access to Kacsmaryk’s Texas courtroom due to the loophole that Congress left open and that conservatives are driving their truck through.
Kacsmaryk’s views on abortion fit neatly into his right-wing political cosmology. Before this suit was filed, he held that the Affordable Care Act’s prohibition of discrimination “on the basis of sex” does not cover sexual orientation. That case was brought by lawyers for former Trump aide Stephen Miller’s America First Legal Foundation, a group based in Washington, D.C., that also found easy access to Kacsmaryk.
He also vacated the Biden administration’s protections for transgendered persons under Title VII. Texas Republican Attorney General Ken Paxton brought that case in Amarillo, even though it’s 496 miles—a seven-hour drive—from Austin, where Paxton’s main office is located. Never mind that there’s a federal district court for the Western District of Texas in Austin.
That so transparently unprincipled a course is being charted by the newly emboldened ideological juristocrats is a tragedy for human rights—as well as for the broad public respect essential to an independent judiciary and therefore to the rule of law. The nation could easily get stuck in the judicial trench the right wing is digging by way of a single courtroom.
Getting out will take persistent organizing effort within our political system. We need to elect a Congress that will exercise its authority to modify federal court jurisdiction. We need a Congress willing to pass a bill that says, “No more single-judge district courts where parties on either side of the aisle can handpick extremist judges to manipulate national policy.”
Given the extent to which its conservative forces are taking advantage of the loophole, any reform will require that Democrats win a trifecta in 2024—election of a majority in both houses of Congress, including a Senate that is willing to reform the filibuster, and a president committed to the vision of a more perfect union of individual rights.
To be sure, pulling it off is a long shot. But it’s an imperative if we are to keep an ideological juristocracy from destroying our freedom.
